NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALAA GHASSOUB OBEID,

Petitioner,

v.

MERRICK B. GARLAND, Attorney 

General,

Respondent.

No. 21-865

Agency No. A095-282-938

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted April 19, 2023

Phoenix, Arizona

Before: TALLMAN, OWENS, and BADE, Circuit Judges.

Dissent by Judge OWENS.

Alaa Ghassoub Obeid, a native and citizen of Lebanon, petitions for review 

of the Board of Immigration Appeals’ (“BIA”) denial of his motion to reopen

removal proceedings. Although Obeid’s motion to reopen was both time and 

number barred, see 8 U.S.C. § 1229a(c)(7)(A), (C); 8 C.F.R. § 1003.2(c)(2), he 

argues that those limitations should have been equitably tolled because his prior 

immigration counsel was ineffective. We have jurisdiction under 8 U.S.C. § 1252

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

MAY 4 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 21-865

and review the BIA’s denial of a motion to reopen for abuse of discretion. 

Hernandez-Ortiz v. Garland, 32 F.4th 794, 800 (9th Cir. 2022). “Under this 

standard of review, we must uphold the agency’s decision unless it is ‘arbitrary, 

irrational, or contrary to law.’” Id. (quoting Agonafer v. Sessions, 859 F.3d 1198, 

1203 (9th Cir. 2017)). We deny the petition. 

Obeid came to the United States on a student visa in 2001 and married a 

U.S. citizen in 2002. In 2003, Obeid was indicted for conspiracy to commit 

money laundering and fell out of legal status because he failed to maintain the 

full course of study required by the visa. DHS initiated removal proceedings and 

an immigration judge (“IJ”) ordered Obeid removed in 2005. By 2006, Obeid 

had been without legal status in the United States for more than one year.

Obeid appealed to the BIA and our court, and also sought an adjustment of 

status based on his marriage. In the course of Obeid’s appeals, the indictment 

was dismissed pursuant to a plea agreement and his wife divorced him. In 2016, 

we remanded for the BIA to determine whether Obeid’s divorce invalided his 

application for an adjustment of status. Obeid v. Lynch, 658 F. App’x 300, 301 

(9th Cir. 2016). Before the BIA, Obeid moved for remand to the IJ. In 2017, the 

BIA denied the motion and held Obeid was ineligible to adjust his status but gave 

him 60 days to voluntarily depart the United States under 8 U.S.C. § 1229c(b)(1). 

Obeid failed to depart. 

Obeid argues he was prejudiced by his former counsel’s failure to properly 

address the voluntary departure order, as his failure to depart resulted in the 
3 21-865

imposition of a ten-year bar to adjustment of status. See 8 U.S.C. 

§ 1229c(d)(1)(B). A claim of ineffective assistance requires a showing that

counsel’s performance was deficient and that the deficient performance caused 

prejudice.1 Singh v. Holder, 658 F.3d 879, 885 (9th Cir. 2011). Prejudice exists 

when “counsel’s performance was so inadequate that the outcome of ‘the 

proceeding may have been affected by the alleged violation.’” Hernandez-Ortiz, 

32 F.4th at 801 (quoting Grigoryan v. Barr, 959 F.3d 1233, 1240 (9th Cir. 2020)). 

The converse is equally true: prejudice does not exist “when the alien lacks 

plausible grounds for relief.” Singh, 658 F.3d at 887. Here, the BIA did not abuse 

its discretion in declining to reopen Obeid’s case because Obeid cannot show he 

was prejudiced by former counsel’s performance.

Obeid cites Singh, 658 F.3d at 886, for the proposition that former counsel 

should have sought to stay the voluntary departure period. The BIA has no 

authority to stay or toll the voluntary departure period. See 8 C.F.R. 

§ 1240.26(e)(1); Dada v. Mukasey, 554 U.S. 1, 19 (2008). Our decision in Singh

rested on our equitable authority to stay the voluntary departure period. See 658 

F.3d at 879. But the adoption of 8 C.F.R. § 1240.26(i) in 2008 abrogated that 

authority. Garfias-Rodriguez v. Holder, 702 F.3d 504, 524–25 (9th Cir. 2012) 

1 Obeid argues the BIA erred by finding that he failed to substantially comply 

with the procedural requirements for an ineffective assistance claim set out in

Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). But even assuming that Obeid 

substantially complied with Lozada, he must still establish the substantive 

elements of ineffective assistance, Hernandez-Ortiz, 32 F.4th at 801, which 

requires a showing of prejudice. 
4 21-865

(en banc). When the BIA denied Obeid’s motion in 2017, it was no longer 

possible to seek a stay of the voluntary departure period.

Former counsel could have withdrawn Obeid’s request for voluntary 

departure, filed a motion to reopen, or filed an appeal, but doing so would have 

automatically terminated the grant of voluntary departure and exposed Obeid to 

immediate removal. Dada, 554 U.S. at 20–21; 8 C.F.R. § 1240.26(e)(1), (i).

Obeid then would have been subject to a different ten-year bar on adjustment of 

status under 8 U.S.C. § 1182(a)(9)(A)(ii). Alternatively, if former counsel had

advised Obeid to comply with the voluntary departure order and leave the 

country, Obeid would have been subject to a ten-year bar on adjustment of status 

because he had accrued more than a year of unlawful presence. 8 U.S.C. 

§ 1182(a)(9)(B)(i)(II). Counsel’s performance was not prejudicial given that any 

action he took would have left Obeid “in substantially the same position that [he]

is in today.” See Hernandez-Ortiz, 32 F.4th at 804.2

Finally, the BIA did not abuse its discretion in denying Obeid’s instant

motion to reopen because ineffective assistance is not grounds for lifting the 

voluntary departure bar unless an alien’s failure to depart was not “voluntary.” 

See Granados-Oseguera v. Mukasey, 546 F.3d 1011, 1016 (9th Cir. 2008); Singh, 

2 Obeid also was not prejudiced by prior counsel’s failure to submit evidence 

about Obeid’s remarriage to his former wife. Obeid has failed to identify any 

evidence former counsel could have introduced regarding the bona fides of his 

marriage that existed at the time of his motion. That evidence did not become 

available until later when an approved Form I-130 was issued. 
5 21-865

658 F.3d at 887. The voluntariness exception is “narrow[]” and does not apply 

unless an alien “is unaware of the voluntary departure order or is physically 

unable to depart.” Singh, 658 F.3d at 887 (quoting In re Zmijewska, 24 I. & N. 

Dec. 87, 94 (BIA 2007)). Unlike the petitioner in Singh, Obeid was indisputably 

aware of the voluntary departure order: his affidavit states that he “received a 

copy of the Board’s 2017 decision in the mail” and “read through it.” Obeid 

argues his failure to depart was not voluntary “because former counsel 

misadvised him about the voluntary departure order.” But a failure to depart is 

voluntary if the “petitioner was fully aware of the voluntary departure order but 

remained in the United States in reliance on counsel’s erroneous advice.” See id. 

at 887 n.10 (citing Granados-Oseguera, 546 F.3d at 1015–16). 

Obeid and the dissent argue we should remand because the BIA’s decision

failed to address the voluntary departure issue. However, where the result on 

remand is “necessary and certain” we “need not remand for the agency to reach 

that same conclusion because to do so ‘would be an idle and useless formality.’” 

Gutierrez-Zavala v. Garland, 32 F.4th 806, 810 (9th Cir. 2022) (quoting NLRB 

v. Wyman-Gordon Co., 394 U.S. 759, 766 n.6 (1969)). We will not remand when 

our precedents and the record establish that the BIA cannot afford Obeid any 

relief from the voluntary departure bar and that Obeid would have been subject 

to a ten-year bar regardless of whether he had departed. 

DENIED.
Obeid v. Garland, No. 21-865

OWENS, Circuit Judge, dissenting:

I respectfully dissent. The BIA abused its discretion because it failed to 

address Obeid’s argument that his attorney prejudiced him by ignoring the 

voluntary departure deadline and thereby creating a bar to adjustment of status. 

See Singh v. Gonzales, 416 F.3d 1006, 1015 (9th Cir. 2005). Specifically, the 

agency did not analyze whether the attorney’s conduct created an avoidable bar to 

relief or whether Obeid is still eligible for relief. The necessary conclusion of 

these analyses is not that Obeid cannot show prejudice. As such, remand is not 

futile, and I would remand for the BIA to analyze whether the attorney’s failure to 

consider the voluntary departure deadline prejudiced Obeid. 

FILED

MAY 4 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS